Stevens v. Holder

• Decision Date: 16 January 2013
• Docket Number: Civil Action No. 1:12–CV–1352–ODE.
• Citation: 950 F.Supp.2d 1282
• Parties: Jacqueline STEVENS, Plaintiff v. Eric HOLDER, Attorney General of the United States; Juan Osuna, Director, Executive Office of Immigration Review; Fran Mooney, Asst. Director, Office of Management Programs, Executive Office of Immigration Review, in her individual and official capacity; Marybeth Keller, Asst. Chief Immigration Judge, Executive Office of Immigration Review, in her individual and official capacity; Gary Smith, Asst. Chief Immigration Judge, Executive Office of Immigration Review; William Anthony Cassidy, Immigration Judge, Executive Office of Immigration Review, in his individual and official capacity; Cynthia Long, Court Administrator, in her individual and official capacity; Darren Eugene Summers, Regional District Supervisor, Federal Protective Services, in his individual and official capacity; Inspector Doe, Federal Protective Services; Paragon Systems, Inc. 's Guard Does 1–3; Paragon System Inc. 's Supervisor Doe; and Paragon Systems, Inc., Defendants.
• Court: U.S. District Court — Northern District of Georgia

950 F.Supp.2d 1282

Jacqueline STEVENS, Plaintiff

v.Eric HOLDER, Attorney General of the United States; Juan Osuna, Director, Executive Office of Immigration Review; Fran Mooney, Asst. Director, Office of Management Programs, Executive Office of Immigration Review, in her individual and official capacity; Marybeth Keller, Asst. Chief Immigration Judge, Executive Office of Immigration Review, in her individual and official capacity; Gary Smith, Asst. Chief Immigration Judge, Executive Office of Immigration Review; William Anthony Cassidy, Immigration Judge, Executive Office of Immigration Review, in his individual and official capacity; Cynthia Long, Court Administrator, in her individual and official capacity; Darren Eugene Summers, Regional District Supervisor, Federal Protective Services, in his individual and official capacity; Inspector Doe, Federal Protective Services; Paragon Systems, Inc. 's Guard Does 1–3; Paragon System Inc. 's Supervisor Doe; and Paragon Systems, Inc., Defendants.

Civil Action No. 1:12–CV–1352–ODE.

United States District Court,

N.D. Georgia,

Atlanta Division.

Jan. 16, 2013.

Keith Hasson, Kelley Brooks Simoneaux, Rene Octavio Lerer, Robert Keegan Federal, Jr., Federal & Hasson, LLP, Atlanta, GA, for Plaintiff.

Christopher W. Hollis, United States Department of Justice, Washington, DC, Aileen Bell Hughes, Office of United States Attorney, Adam M. Masarek, Drew Eckl & Farnham, Atlanta, GA, for Defendants.

ORDER

ORINDA D. EVANS, District Judge.

This case is before the Court on two motions to dismiss [Docs. 16 & 19], and on Plaintiff's motion to consolidate a hearing on the preliminary injunction and a trial on the merits [Doc. 26]. For the reasons discussed below, the Government's motion to dismiss [Doc. 16] is GRANTED IN PART and DENIED IN PART, Paragon System, Inc.'s motion to dismiss [Doc. 19] is GRANTED IN FULL, and Plaintiff's motion to consolidate [Doc. 26] is DENIED AS MOOT.

I. Background¹

Plaintiff Jacqueline Stevens (“Dr. Stevens”) is a Professor of Political Science at Northwestern University. Her academic scholarship includes research and publications on the misconduct of immigration law enforcement officials, including immigration judges. In addition to academic publications, Dr. Stevens has reported extensively for media outlets, including The New York Times, CNN, and NPR, on issues of secrecy in deportation proceedings and illegal conduct by immigration officials.

Defendant William A. Cassidy (“Judge Cassidy”) is an immigration judge with the Executive Office of Immigration Review (“EOIR” or “Immigration Court”), in Atlanta, Georgia. Plaintiff alleges she was denied access to Judge Cassidy's courtroom and proceedings on multiple occasions during 2009 and 2010 in violation of her First, Fourth, and Fifth Amendment rights.

Plaintiff alleges two specific occasions on which she was unlawfully excluded from the immigration hearings. On October 7, 2009, Dr. Stevens and Mark Lyttle, a United States Citizen wrongfully deported by Judge Cassidy in 2008, ² sat in Judge Cassidy's courtroom to observe three cases listed on his 1:00 p.m. docket. Also present in the courtroom were the court reporter, the wife of a detainee at Stewart Detention Center, and the detainee's attorney (“Attorney A”). The detainee was agreeing to voluntary departure and appeared via televideo conference from the detention center. After Judge Cassidy entered the courtroom, he inquired about each attendee's purpose. After determining the identity of Dr. Stevens and Mr. Lyttle, Judge Cassidy immediately exited the courtroom, without explanation.

Several minutes later, Defendant Cynthia Long, the court administrator, entered and told Dr. Stevens and Mr. Lyttle they had to leave “because asylum hearings were scheduled.” Dr. Stevens, knowing that only 0.6% of Immigration Court cases each year are classified as “Credible Fear,” “Reasonable Fear,” or “Asylum,” doubted all three cases qualified. 8 C.F.R. § 1208.6 (limiting disclosure of information or records in these cases without consent of the applicant or at the discretion of the Attorney General). She questioned Defendant Long about the cases on the docket and Defendant Long gave “conflicting accounts” about why they had to leave. A few minutes later, Defendant Long reappeared and told Dr. Stevens and Mr. Lyttle they could sit in on the next case. As they returned to the courtroom, they encountered Attorney A in the hallway who explained the wife was saying goodbye via video conference, so they all remained in the hallway to give her some privacy. After the wife and Attorney A left, Dr. Stevens and Mr. Lyttle sat down in the courtroom. A few minutes later, Defendant Long reentered the courtroom, and informed them there were no more hearings scheduled and they should leave. At no point on October 7 did Dr. Stevens again see Judge Cassidy.

Pursuant to a Freedom of Information Act (“FOIA”) request, Dr. Stevens obtained a copy of an internal email indicating Defendant Long had informed various Immigration Court officials that “Jackie was allowed to observe a removal hearing today in Atlanta, but was not allowed to observe an asylum hearing—at the request of the respondents.” The email further states Judge Cassidy said that “in Jackie's presence, he advised the respondents and their attorneys that a member of the media was present and asked if they wanted an open or closed hearing. Both respondentsadvised they wanted a closed hearing (sexual abuse case).”

In her FOIA request, Dr. Stevens also asked for a copy of the October 7, 2009 docket. In response, EOIR provided her with a docket listing only one case for that day and a note stating, “Please be advised the original Immigration Court calendar could not be located.” When Dr. Stevens inquired about the missing cases, the EOIR public affairs office responded with an email explaining, “The third hearing for October 7, 2009, was recalendared for another day at the request of the respondent's attorney prior to October 7. It appeared on the October 7 calendar due to administrative oversight.”

Dr. Stevens says she called the attorney (“Attorney B”) for the case listed on the docket she obtained under FOIA, and confirmed he did have a telephonic hearing with Judge Cassidy that day and that it was not an asylum case. Dr. Stevens alleges that this case, together with Attorney A's voluntary departure case, the recalendared case, and the two “sexual abuse” cases referenced by Judge Cassidy, add up to a total of five, rather than three, cases and show someone is covering up the number and nature of the cases heard on October 7.

On April 19, 2010, Dr. Stevens returned to the Atlanta Immigration Court to observe Judge Cassidy's immigration hearings. Dr. Stevens' complaint quotes an internal EOIR email sent the morning of April 19 titled, “Jackie Stevens is at the Atlanta Immigration Court” and informing several Immigration Court employees that “[s]he's currently observing Judge Cassidy's televideo hearings (he's doing Stewart docket via VTC today). He called to let us know.” Dr. Stevens alleges that she was permitted to stay during the morning proceedings, for the detainees represented by counsel, but that afternoon she was made to leave during the hearing of a pro se detainee. Specifically, Dr. Stevens alleges Judge Cassidy approached her after the courtroom had cleared of the other attorneys and told her to leave. As the docket calendar reflected no asylum hearings before Judge Cassidy that day, Dr. Stevens asked to know on what basis she was being asked to leave. Dr. Stevens informed Judge Cassidy she was aware federal regulations required immigration hearings be “open to the public” unless certain exceptions apply. 8 C.F.R. § 1003.27. Dr. Stevens maintains she asked for, but was never given, a reason or under what exception Judge Cassidy was closing the hearing. She also alleges Judge Cassidy threatened to have security remove her if she did not leave.

Dr. Stevens states that before she left the courtroom she told Judge Cassidy's assistant she would be waiting in the lobby, and if by some chance the respondent had followed any of the exchange and requested her presence, she would return. Plaintiff maintains the entire conversation with Judge Cassidy took place in normal tones and at normal volume, and at no point did she refuse to leave; rather, she was asking for the legal reasons on which she was being excluded.

Dr. Stevens provides another email excerpt, sent by an EOIR employee to Defendant Long, which she says confirms her understanding that security was asked to remove her from Judge Cassidy's courtroom, but was not told to remove her from the building:

Officer [REDACTED] was proceeding to the Immigration Court waiting room, and I informed him that I was not requesting for her to leave the building, but she is currently not allowed in courtroom # 5. The officer indicated he understood and still proceeded into the waiting room. I heard the officer ask her to come back with him.

Despite this instruction, Dr. Stevens alleges three security officers, Defendants Paragon Systems, Inc.'s Guard Does 1–3 (“Guards”) ³, approached her in the waiting room and told her, “It's time to leave.” Dr. Stevens alleges the three Guards “crowded” around her, “stood over her,” and when she began asserting her right to observe immigration proceedings, Guard 1 removed his handcuffs from his belt. At this point Dr. Stevens says she got up and walked toward the exit, followed closely by the three Guards. At some point as they walked to the exit, Guard 1 told another Guard, “Judge Cassidy wants her out of here! He wants her out of the building!” When she asked Guard 1 what his name was, he responded with “Officer Out the Front Door.” As Dr. Stevens tried to read his name tag, she alleges he pushed her left shoulder and side with his hands. She also alleges Guard 2 “had his hands on the right side of [her] torso.”

Dr. Stevens says...